Lee v Archer
[2012] NZHC 3308
•7 December 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2012-409-002048 [2012] NZHC 3308
BETWEEN SUSAN MARGARET LEE Plaintiff
ANDBRODIE JANE ARCHER Defendant
Hearing: 3 December 2012
Appearances: J M Kirkland for Plaintiff
S P Rennie for Defendant
Judgment: 7 December 2012
JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] The defendant, Ms Archer, is the daughter of the late K G Cummings, who died on 2 August 2012 without leaving a will. On 13 August 2012 Ms Archer swore an affidavit in support of an application for Letters of Administration in his estate. In that affidavit she stated in paragraph 7:
7. At the time of his death, my father was a widower and was not living in a de facto relationship.
[2] The plaintiff, Ms Lee, says that statement was false, and has issued this proceeding for an order that the grant of Letters of Administration on Intestacy made by the Registrar of this court on 14 October be recalled.
[3] Rule 27.35 of the High Court Rules sets out the order of priority of those who may apply for a grant of administration on an intestacy. Ms Lee says that contrary to the sworn statement of Ms Archer, she was the de facto partner of Mr Cummings at the time of his death, and accordingly is the person with first priority to apply for and be granted Letters of Administration. It is common ground that if Ms Lee was the de
facto partner of Mr Cummings when he died, she does have first priority to apply for
SUSAN MARGARET LEE V BRODIE JANE ARCHER HC CHCH CIV-2012-409-002048 [7 December 2012]
Letters of Administration. In this proceeding she does not seek to do so; she confines the relief she seeks to an order recalling the present grant of administration to Ms Archer because of the statement Ms Archer made in her affidavit.
[4] The issues in this case are:
a) Can Ms Lee proceed by way of an application for summary judgment?
b) If Ms Lee was the de facto partner of Mr Cummings when he died, does the Court have jurisdiction to recall the grant of Letters of Administration to Ms Archer?
c) Was Ms Lee the de facto partner of Mr Cummings when he died, so that the sworn statement of Ms Archer is false?
d) If the answers to issues a), b) and c) are affirmative, should the Court make an order as sought, or decline to do so in the circumstances of this case?
Can Ms Lee proceed by way of an application for summary judgment?
[5] Ms Lee has applied for summary judgment on the issues raised in this case. Judgment can only be entered on this basis if Ms Lee can satisfy the Court that Ms Archer does not have a defence to the claim.1 This procedure is not usually suitable for the determination of contested issues of fact. In Attorney-General v Rakiura Holdings Ltd,2 Greig J said:
In a matter such as this it would not be normal for a judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the words of Lord Diplock in Eng Mee Yong v Letchumanan [1980] AC 331, at
341 E, the judge is not bound:
“to accept uncritically as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be”.
1 Rule 12.2 High Court Rules
2 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 at 14
[6] Generally the Court will take a robust approach to summary judgment,3 but the procedure is not to operate in an oppressive manner.4
[7] Rule 12.1 of the High Court Rules provides that the rules relating to summary judgment apply to all proceedings, but with limited specified exceptions, one of which is an application for administration in common form under Part 27. This is not such an application: it is the inverse. Whilst r 27.34 provides specifically for recall of a grant on an interlocutory application in certain circumstances, common to all of them is that the application must be unopposed. Any other application for an order for recall of a grant of administration must be by way of a proceeding. This
means an ordinary proceeding under Part 5.5 This proceeding is under Part 5.
[8] Accordingly the plaintiff is entitled to apply for summary judgment.
If Ms Lee was the de facto partner of Mr Cummings when he died, does the Court have jurisdiction to recall the grant of Letters of Administration to Ms Archer?
[9] Section 21 of the Administration Act 1969 provides a statutory basis upon which an administrator may be discharged or removed from office by the Court. The only given ground of possible relevance to the present application is “where it becomes expedient” to remove an administrator from office. Mr Rennie submits that an examination of whether it is expedient to discharge or remove an administrator from office involves an examination of the factual position of the estate, and consideration of the appropriate administration of the estate prospectively, given the circumstances which have arisen. An example, Mr Rennie says, is given by Crick v
McIlraith6 where the Court noted the ambit of s 21 and discussed, also, the inherent
jurisdiction of the court. The learned Judge cited R v Leitch7 where the Court of
Appeal discussed the meaning of expedient, albeit in a different context. In
McIlraith the Judge said:
3 Bilbie Dymock Corporation Ltd v Patel & Bajaj (1987) 1 PRNZ 84 (CA)
4 Doyles Trading Co Ltd v West End Services Ltd [1989] 1 NZLR 38
5 Bonner v Evans HC Auckland CIV-2009-404-004527, 17 November 2009, Abbott AJ
6 Crick v McIlraith [2012] NZHC 1290
7 R v Leitch (1997) 15 CRNZ 321 (CA)
[18] ... The term “expedient” imports considerations of suitability, practicality and efficiency. In the context of estate administration the use of the term “expedient” therefore demands an overarching question – will removal of the administrator be a suitable, practical and efficient means of advancing the interests of the estate and of its beneficiaries?
[10] Against that background Mr Rennie submits that as estate administration is well advanced, and has in fact been conducted under the auspices of a senior solicitor acting for Ms Archer, and as Ms Archer has willingly agreed not to make any distributions of the estate whilst the issue raised in this proceeding remains extant, it is not in fact expedient that Ms Archer should be removed from office.
[11] Mr Kirkland, however, does not specifically rely on s 21. Nor does he criticise Ms Archer’s administration of the estate to date. Rather, he relies on the principle that a grant may be revoked where it has been obtained “upon a false suggestion”, which in more contemporary language means a false entry of fact on
the record.8
[12] The principle is stated thus in Halsbury:9
A grant may be revoked where it has been obtained upon a false suggestion, whether made fraudulently or in ignorance where the false suggestion obscures a defect in the title to the grant; it may also be revoked where it subsequently becomes inoperative or useless, or where if allowed to subsist it would prevent the due administration of the estate.
Accordingly, a grant may be revoked if it was obtained on the false suggestion that the person entitled to it is dead, or while an action is pending in another competent court as to the validity of a will, or by a woman claiming to be the relict of the deceased, but who was not, in fact, legally married to him, or by imposters, or by the elected guardian of a minor where there is a testamentary guardian, or by a minor on the erroneous understanding that he is of age, or by the next of kin where there is a valid residuary bequest.
[13] Cases are cited in respect of each of these examples. Whilst none is, on the facts, identical to this case, the first is similar: there does not seem, to me, to be a
material difference between a false suggestion that a person who would be entitled to
8 Jowitt’s Dictionary of English Law 3rd ed. See also Black’s Law Dictionary 9th ed:
“Suggestion on the Record” is defined to mean “a formal written or oral statement informing the
Court of an important fact that may require a stay of proceedings or affect the Court’s decision.”
9 Halsbury’s Laws of England” 5th ed vol 103 para 848; see also LexisNexis Wills and Law of
Succession, paragraph 10.46.
apply for Letters of Administration is dead, and a false suggestion that there is no person who would be entitled to apply for Letters of Administration in priority to the applicant. The latter is the suggestion here.
[14] Accordingly, the Court has jurisdiction to recall the grant of Letters of Administration on the basis of a false suggestion, if established. I need not consider issues of expedience, nor other considerations set out in s 21. I turn to consider whether the sworn statement of Ms Archer was false or not.
Was Ms Lee the de facto partner of Mr Cummings at the date of his death?
[15] Under s 6 of the Administration Act 1969, Letters of Administration may be granted to one or more of the persons beneficially interested in the estate of the deceased. Under s 77, a de facto partner is entitled to a share in an intestacy, to the same extent as a husband or a wife, so by s 6 may be granted Letters of Administration.
[16] Section 2 of the Administration Act provides that a surviving de facto partner is a person who was living in a de facto relationship with the deceased at the date of his or her death, and de facto relationship has the meaning given to it by s 2 of the Property (Relationships) Act 1976. This section refers to the definition in s 2D of that Act.
[17] Section 2D states that a de facto relationship is a relationship between two persons who are both 18 years or older, who live together as a couple, and who are not married to, or in a civil union with, one or another. In determining whether two persons live together as a couple all the circumstances of the relationship are to be taken into account including any of certain listed matters that are relevant in a particular case. Subsection (3) provides that no finding in respect of any of the listed matters, or in respect of any combination of them, is to be regarded as necessary, when determining whether two persons live together as a couple, and the Court is entitled to have regard to such matters and to attach such weight to any matter as may seem appropriate to the Court in the circumstances of the case.
[18] The listed matters are:
(a) the duration of the relationship:
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship.
[19] Mr Cummings was aged over 18, as is Ms Lee. They were not married to each other or in a civil union with one another. Therefore they were, as a matter of law, in a de facto relationship if they lived together at the time of Mr Cummings’ death “as a couple”. The indicia I have cited are directed at the question of whether they were living together as a couple, not at the underlying issue which is derived from that point, namely whether they were in a de facto relationship. This is clear from the wording of s 2D(2) and (3) and was also referred to by Asher J in L v P
[Division of Property].10 At [44] he said:
The Judge in this part of his analysis appeared to lose sight of the structure of s 2D, and that the central plank of a de facto relationship is the parties living together. He considered each s 2D(2) factor as if it were indicative of a de facto relationship, rather than indicative of whether the parties were living together as a couple. The Judge focused on a particular event, undoubtedly an important one, namely their decision to live together, and appeared to elevate this to their actually commencing a de facto relationship. In doing so, he lost sight of the fact that while the parties need not reside together all the time for there to be a de facto relationship, the circumstances must equate to their living together. The dominating factor remains whether the parties can be seen as living together as a couple. ...
[20] Ms Lee swore three affidavits. She stated that she was living in a de facto relationship with Mr Cummings through to his death on 2 August 2012. She said
10 L v P [Division of Property] [2008] NZFLR 401
this de facto relationship commenced in or about August 1999. They met in 1998. At that time Mr Cummings was married and Ms Lee was in a long term relationship with another person. In August 1999 they began a sexual relationship. I pause to observe that the reference to a de facto relationship having started at that time is plainly wrong, and Mr Kirkland acknowledges it as an error.
[21] Ms Lee separated from her then partner in March 2000. Mr Cummings separated from his wife in November 2000. Each maintained a separate home but according to Ms Lee their sexual relationship continued and she slept at Mr Cummings’ home approximately four out of every seven nights. The couple went on holiday together over the ensuing years, and attended family events from time to time.
[22] In October 2003 Mr Cummings moved into Ms Lee’s home. They played golf together in the “couples” section of their golf club. Mr Cummings contributed towards household running costs from August 2004. Life continued generally along these lines until the end of 2007. At Christmas that year, however, Mr Cummings moved out of Ms Lee’s home. She says that their relationship nonetheless continued, as did Mr Cummings’ contributions of $400 per week to household expenses. In July 2008 Mr Cummings purchased a house in Cashmere Road. Ms Lee viewed the house with him. Mr Cummings bought the house and he and Ms Lee moved into it.
[23] At that time Mr Cummings arranged for a prenuptial relationship property agreement to be drafted by his solicitors. The document evidently stated that their relationship was beginning when they moved into the house. Ms Lee says she took offence to this as by then they had been in a relationship for eight years. They discussed it and according to her Mr Cummings agreed to “throw [the agreement] in the bin” if she agreed to move in with him. She did, and the agreement was not signed. Nor, on the evidence, discussed again.
[24] Ms Lee says that on Christmas morning 2008 Mr Cummings proposed to her, and she accepted. They announced their engagement to family and friends the same day. Ms Archer was present, and burst into tears. Her husband and brother were
also present, and “all hugged and congratulated us on our engagement”. Mr Cummings gave her a ring which she says she wore until he died. The couple remained living in the Cashmere Road property until Mr Cummings’ death.
[25] Ms Lee produced as exhibits to her first affidavit a number of photos, cards from other persons, and tickets to events which she and Mr Cummings had attended. She also produced a copy of a card said to have been sent to her and Mr Cummings at the time of their engagement.
[26] Ms Lee described their sexual relationship as wonderful and mutually satisfying. She gave details of items of jewellery Mr Cummings bought for her in
2005 and 2007 in addition to her engagement ring.
[27] Ms Lee says that she and Mr Cummings had regular contact with Ms Archer at birthday parties and other family occasions, and Ms Lee says she has enjoyed a close and loving relationship with Ms Archer’s two children, who stayed overnight with Mr Cummings and her on many occasions. In recent years Mr Cummings and she called around to Ms Archer’s home after Sunday afternoon golf and stayed to share family dinners.
[28] Ms Lee says that once they moved into Cashmere Road together Mr Cummings paid the rates and the power, telephone and gas and for some items from the supermarket. She paid the main weekly supermarket “grocery shop”, the cleaning lady, plants for the garden and similar expenses. When they travelled she paid for airfares and Mr Cummings paid for rental cars and accommodation. They shared household duties and evening meal cooking. They did the gardens together. Both worked full-time. Various invoices were produced in support of the payments Ms Lee says she made for the contents of the home.
[29] Ms Lee produced a paper said to be in Mr Cummings’ writing which reads:
To my buddy
My Pal.
The love of my life. With love from
Ken.
Merry Xmas dear Girl xxxxxxxx
A number of other cards with affectionate notes written on them were also produced.
[30] Ms Lee produced the notice of Mr Cummings’ death from the newspaper,
which read (to the extent relevant):
CUMMINGS, Kenneth
George (Ken) – On August 2, 2012, unexpectedly after a short illness, aged
66 years, much loved partner and best friend of Sue, dearly loved father of Harley and Brodie, and father-in-law to Sean, adored Gar of Stella and Chloe, and a loved son of the late Enid and Bert ...
[31] She also produced Mr Cummings’ death certificate which, in the relevant portion, states that Mr Cummings was in a de facto relationship with Susan Margaret Anstis at the time of his death. Anstis is Ms Lee’s maiden name. I return to this document later [45] – [49].
[32] Ms Lee produced a letter from Work and Income received after Mr Cummings’ death. It describes Mr Cummings as her late husband. She produced a letter from the Ministry of Social Development which related to Mr Cummings’ superannuation. It stated that the local services manager of the Ministry had “... viewed the Ministry’s computer records for Mr Cummings, and can confirm you were listed as his partner from 5 August 2010 to 2 August 2012. This information would have been loaded onto the Ministry’s computer system based on what was stated in his New Zealand superannuation application”. Ms Lee produced that application. She identified the handwriting on it as that of Mr Cummings. At paragraph 26 Mr Cummings had ticked a box stating he had a partner, and was in a relationship. In response to an enquiry on the form for his partner’s name he stated “Susan Margret Lee”. At question 30 he stated that he and his partner lived at the same address.
[33] Ms Lee produced Mr Cummings’ tax code declaration dated 20 July 2010 in which he entered a tax code “M”.
[34] Ms Lee produced a contract from Sky Television in which, under the heading “spouse/room mate information”, Ms Lee is described: “Sue Lee Prtr – Full Autho”. I take the abbreviated words to state partner, full authority.
[35] In addition to this material Ms Lee also produced a number of statements from other persons, relating to their relationship. However, in the circumstances of this case, I have elected not to give any weight to these statements as they are hearsay. I therefore make no further reference to them.
[36] Ms Archer also gave evidence. She swore one affidavit.
[37] Ms Archer commenced by referring to the unsigned draft de facto relationship property agreement, and indicated that she is unwilling to “accept Susan’s contention without an examination of the background and the decision of the court”.
[38] First, she stated:
In my perception, my father’s relationship with Susan a little mysterious. They often broke up and lived separately. At no stage was it suggested by Susan or my father that they regarded themselves as being in a de facto relationship. I was not aware of any engagement.
She then suggested that her father would not have considered there was a de facto relationship prior to 29 October 2008 as that was the stated commencement date in the draft relationship property agreement.
[39] Ms Archer then said she does not recall any suggestion that Ms Lee lived with her father at his business premises, where he lived initially after his separation from her mother. She did not see any evidence of it, for example toothbrushes in the bathroom. She acknowledged that her father did move into Ms Lee’s home “at some stage” which she thought may have been in 2005 but noted that he moved out again during Christmas 2007.
[40] Ms Archer says her father was involved in dating groups, and he mentioned to her from time to time that he had been out on a date “or seen someone again”. No dates are given to assist in placing this in the chronology of the relationship.
[41] Ms Archer then acknowledged that her father and Ms Lee lived together at the Cashmere Road property after he bought it but states that “their relationship again broke up in early 2010. I am unsure how long the break lasted. It did subsequently resume”.
[42] Ms Archer says that her father paid for all of the expenses relating to Cashmere Road and made decisions about furnishings in the home and gave her the impression he was proud of his choices for the interior of the property. She expresses her belief that her father and Ms Lee did not have any joint bank accounts.
[43] Ms Archer produced an email she sent to her father’s solicitor shortly before he died. In it, she said:
Dad/Sue have been on/off over the last 10 years or so – whether she is there for the long term is anyone’s guess. There have been a lot of dramas with her expecting money over the years. Although I believe she has the best of intentions in place for his welfare now – she is not a good communicator and has burnt a few bridges with a lot of his friends and family, plus we know that if he recovers it will be months and months.
[44] This was written in the context of appointment of a welfare guardian for
Mr Cummings.
[45] Neither Ms Lee nor Ms Archer gave evidence on how the entries relating to his relationship came to be on Mr Cummings’ death certificate. I invited counsel to contact the funeral director and gave leave to each to file further affidavits on this issue.
[46] Mr Kirkland filed an affidavit from Mr Dean Austin, the undertaker who attended at the time of Mr Cummings’ death. He said that he went to the Cashmere Road property to take funeral instructions from Mr Cummings’ family. Ms Lee and Ms Archer were among four persons present. The purpose of the meeting was to
gather particulars for Mr Cummings’ death certificate, and funeral arrangements.
Mr Austin then said:
Brodie was present at all times during my meeting with the family. She took control of the conversation, and was predominantly the one answering my questions.
[47] Mr Austin then produced a copy of a standard form which he prepared with the assistance of the family. On that document Ms Lee is described as Mr Cummings’ partner, and as his next of kin. The address of the Cashmere Road property is given as her address, as it is for Mr Cummings.
[48] Mr Rennie then arranged for Mr Austin to swear a second affidavit, which elaborates on the meeting at the Cashmere Road home. He said he noted tension between Ms Lee and Ms Archer which arose when Ms Lee told him that she was engaged to Mr Cummings and showed him a ring. He recalled that Ms Archer expressed surprise.
[49] He noted that on the form he had not ticked “de facto” in a box in the section dealing with marital status at death, but obtained from Ms Lee the information on the form relating to Mr Cummings’ relationship with her. Ms Lee also told him that she had been in a de facto relationship with Mr Cummings since he was 54. He ticked the box titled “de facto relationship” based on that information. He could not say whether this was within Brodie’s hearing or that she saw him tick the box. Although she was actively involved in the discussions, there were no discussions on whether or not a de facto relationship existed.
Discussion of the evidence
[50] Mr Rennie referred me to Scragg v Scott,11 where Their Honours Gendall and
Ellen France JJ said:
[64] In determining whether a de facto relationship exists Courts are often required to assess multiple pieces of circumstantial evidence. That is why the indicia set out in s2D are inclusive but not exhaustive. If sufficient pieces of evidence exist which, when viewed cumulatively, and through the application of common sense and proper reasoning, satisfy the finder of fact
11 Scragg v Scott (2006) 25 FRNZ 942
that the relationship is a de facto relationship then the statutory test is met. Weight to be given to individual pieces of circumstantial evidence may vary. If both parties say they are in a de facto relationship that may well be decisive direct evidence, depending upon the existence of other characteristics. Parties may simply present to the outside world in a particular way. They may share an emotional bond or association over an extended period and act in a way, inconsistent with any view other than that they are in a de facto relationship. It is the cumulative weight of all factors whether specified in the Act or not (because as was made clear by the minority judgment in Ruka “there will be others”), which is decisive. The approach must be broad, with various factors to be weighed up in an evaluative task, similar to those the Courts are frequently called upon to undertake when drawing conclusions from circumstantial evidence.
[51] Mr Rennie says that this exercise cannot be undertaken on an application for summary judgment. Mr Kirkland agrees that this case correctly sets out the approach I should take to assessment of the evidence, but says this can be done on this application.
[52] As this is an application for summary judgment, and therefore none of the evidence has been tested by cross examination, it is particularly necessary for me to step through it with considerable caution, and I have undertaken my assessment of the facts put before me in this way. Additionally:
a) I have already noted that I have taken no account of the hearsay statements presented on behalf of Ms Lee.
b)I am mindful of the fact that only Mr Cummings, during his lifetime, and now Ms Lee, had intimate knowledge of their relationship and only Ms Lee can now place that before the Court. But I must assess her evidence in the context of all the evidence before me.
c) I have not overlooked Mr Rennie’s statement to me that other witnesses could be called to give more evidence in support of his client’s position, but no witnesses were named, and the issue of whether or not Ms Lee and Mr Cummings were in a de facto relationship was squarely raised when this proceeding was filed so there was every opportunity for further evidence to be given on behalf of Ms Lee had she so wished.
d)In my assessment of the evidence, I have been mindful that a finding that a de facto relationship is established to the requisite standard on the
evidence necessarily means that Ms Archer has sworn a false affidavit in support of her application for Letters of Administration. That affidavit is not expressed as a guarded belief or an opinion on her late father’s relationship, it expresses his status as a fact, and without reservation. Such a finding is not to be lightly made.
[53] It is established that Mr Cummings and Ms Lee lived together at the time of his death. At the very least, they had lived together for a period of approximately four years, commencing when they moved into Mr Cummings’ new home in Cashmere Road. The period during which they did not live together, for a few months from Christmas 2007, had passed. Prior to that Christmas they had lived together since 2003.
[54] Ms Archer says their relationship broke up in early 2010, though accepts that she is unsure how long the break lasted and the relationship subsequently resumed. Ms Lee denies this. Either way, even if this occurred, it does not avoid the fact that for the majority of the four year period prior to Mr Cummings’ death they lived together. A de facto relationship can exist even though for a time the parties may not live together.12 Accepting that, for the majority if not all of nine years prior to his death they had lived together.
[55] For a de facto relationship to be established it must next be shown that the parties lived together as a couple. It is in respect of this latter aspect of the requisite analysis that the indicia listed in s 2D(2) of the Property (Relationships) Act 1976 must be considered. I have set out the evidence which has been given by Ms Lee and Ms Archer. By reference to the given indicia:
a) The relationship subsisted for some 13 years from 1999 to 2012. The nature of the relationship developed from a purely sexual one, to spending considerable periods of time together (though in separate houses) including holidays and family and social events, through to living together for nine years. Whilst it seems that there were ups and
downs within the relationship, the evidence does not show that at any
12 L v P, para [19] supra
point during that period it actually ended. Even if the period living in separate residences from Christmas 2007 was a break in the relationship, which I do not find to be established on the evidence, it was a subsisting relationship of at least four years’ duration at the time Mr Cummings died.
b) Mr Cummings and Ms Lee shared a common residence from 2008 to
2012, and shared each other’s residences from around 2003 to the end of
2007.
c) Mr Cummings and Ms Lee had a sexual relationship from 1999 to 2012. d) They shared a degree of inter-dependence, which varied over time. For a
while (when living in her house) Mr Cummings paid monies to Ms Lee; later they contributed in various ways to the expenses which they incurred, including food, domestic help, travel and so forth. They had a joint account, at least for a period.
e) The Cashmere Road property appears to have been acquired as a residence for Mr Cummings and Ms Lee. She inspected the house with him before he bought it, and lived in it from the time he took possession. They jointly used it as their residence; ownership remained with Mr Cummings. Ms Archer says that Ms Lee retained ownership of her own house as well, but if she did, she did not reside there in the four years prior to Mr Cummings’ death.
f) There are a number of factors relevant to the degree of mutual commitment of Mr Cummings and Ms Lee to a shared life. Ms Archer casts doubt on this commitment, as I have noted. Certainly, as I have said, there were ups and downs in the relationship. However, it is also clear from cards and notes from Mr Cummings produced by Ms Lee, and from, for example, the gifts he gave her and the length of time that the relationship enured that there was a significant degree of mutual commitment. How that would have stood the test of further time is not known but the majority of indicia – indeed all, except for the doubt
expressed by Ms Archer – point in the direction of a long term mutual commitment to a shared life.
g) Mr Cummings and Ms Lee did not have children to support.
h) Whilst a household cleaner was engaged the evidence shows that both Mr Cummings and Ms Lee participated in performing duties around the house, both inside and outside.
i) The final listed element for consideration is the reputation and public aspects of the relationship. All that needs to be said about this is that Mr Cummings and Ms Lee openly lived together. They were not secretive. It is clear they shared their leisure time with friends and family, and presented as a couple.
[56] The list of factors identified in s 2D(2) is not intended to be an exhaustive set of criteria. In the foregoing discussion I have concentrated on the evidence of Ms Lee and Ms Archer. There are, however, two documents which in my opinion add considerable weight to the case for Ms Lee, because they contain information from Mr Cummings himself. First, and the lesser of the two, is the record of his Sky Television account. The information recorded by Sky could only have come from Mr Cummings as account holder. Secondly, and more importantly, is his application for National Superannuation, and accompanying tax code declaration ([32] above). These statements are clearly statements by Mr Cummings of his view of his relationship with Ms Lee and they align with the evidence of Ms Lee.
[57] Against that background, the paragraph from Ms Archer’s evidence set out in [38] above appears to set out a view which is out of touch with the picture which emerges from all the other evidence. As I have said, there were ups and downs. Whether that can fairly form the basis of a view that “they often broke up and lived separately” is debatable. Even if that did occur in earlier days, and even (assuming, without finding, that there was a further brief breakup in 2010 as Ms Archer contends) that is more indicative, in my view, of the dynamics of the relationship, given its 13 year overall duration and all the other indicia of a long term emotional bond and association, than of Mr Cummings and Ms Lee being other than a couple.
[58] So far as the statement that at no stage was it suggested by (Ms Lee) or (Mr Cummings) that they regarded themselves as being in a de facto relationship is concerned, this conflicts with the two documents executed by Mr Cummings himself, as well as the evidence of Ms Lee and, in particular, her evidence in relation to becoming engaged, and her wearing of an engagement ring from Christmas 2008 onwards. I refrain from finding as a fact whether Ms Archer knew of the engagement; there is clear evidence from Ms Lee of her being told, and her reaction, but bolstering Ms Archer’s denial of knowledge there is evidence from Mr Austin of Ms Archer expressing surprise when Ms Lee told him. I assume, once more in Ms Archer’s favour, that she was not aware of the engagement, but that does not of course mean that the commitment was not made.
[59] Ms Archer’s evidence that her father paid for all the expenses relating to
Cashmere Road is contradicted, also, by documents proving the contrary.
[60] Considering the totality of the evidence of Mr Austin, the description of Ms Lee as a de facto partner on the death certificate was from information by Ms Lee, so adds little to the evidence overall.
[61] Finally, at [43] I have recorded a passage from an email Ms Archer sent in July 2012. Clearly she had reservations about the potential longevity of the relationship. In the absence of her being cross-examined about those views, I accept that she held them and had her own reasons for doing so. But in the end neither these views, nor any other aspect of the evidence is sufficient of itself to determine whether or not Mr Cummings or Ms Lee lived together as a couple when he died. As noted in Scragg v Scott common sense and proper reasoning must be applied.
[62] The weight of the evidence is more than sufficient to satisfy me that not only did Mr Cummings and Ms Lee live together at the time of his death, but that they did so as a couple for a period extending back into the early 2000s. Over that time the relationship evolved from a sexual relationship whilst they were in other relationships, through a period in separate houses but spending substantial periods of time together, and finally to a shared home and many of the trappings commonly found in a shared life as a couple, all of which I have discussed.
[63] Accordingly I find that Mr Cummings and Ms Lee were in a de facto relationship at the time of his death. It follows that the statement made by Ms Archer in her affidavit was false. It further follows that the foundation has been laid for the Court to exercise jurisdiction to recall the grant of Letters of Administration in her favour.
Should the Court decline to make an order in the circumstances of this case?
[64] The Court has a discretion whether to enter summary judgment, even if the basis upon which it might do so is established, as here. Mr Rennie argued that I should refrain from making the order sought because Ms Archer is well qualified for her role, and on the evidence of the solicitor for the estate, has acted professionally throughout the administration and is, in his opinion, the proper person to be administrator of the estate. He noted that no complaint has been made about the administration, and he says that administration is almost complete. In addition Ms Archer has given an undertaking not to distribute the estate until either a compromise is negotiated or an appropriate direction is given by the Court.
[65] Mr Kirkland does not argue that Ms Archer lacks the qualities and ability to act as an administrator.
[66] However, in my view, whilst these are undoubtedly factors that might weigh on the Court in favour of maintaining the status quo, were this an application to remove Ms Archer as administrator under s 21 of the Administration Act 1969, they are of less relevance to this application, which is founded on a false suggestion in Ms Archer’s affidavit. Given the finding I have made, the result is that the Court has been led (even if unintentionally) into making an order which it would not have made had the position, now established, been known to it at the time. In this circumstance I cannot see any principled basis for exercising a discretion in favour of Ms Archer, who is the one who made the false statement to the Court.
Outcome
[67] The grant of Letters of Administration to Ms Archer dated 14 August 2012 is recalled.
[68] Ms Lee is entitled to costs. I assess that these will be on a 2B basis, with disbursements fixed by the Registrar.
J G Matthews
Associate Judge
Solicitors:
Saunders & Co, Christchurch – [email protected]
Rhodes & Co, Christchurch – [email protected]